JUMA.KHAN vs Mat. SHAMIM and 3 others

1. ' This Revision Petition is directed against the judgment and decree dated 16-12-1987 passed by IVth Additional District Judge, Karachi (South), whereby dismissing petitioner's appeal and upholding the judgment dated 24-9-1985 and decree dated 5-10-1985 passed by IXth Civil Judge Second Class, Karachi (South).

2. ' The facts leading to the filing of the petition are that the petitioner purchased the superstructure on plot No, K-20-147-S/10 Lyari Quarter Karachi from one Karam Khan with its vacant possession for total consideration of rs2,000. The case of the petitioner, as set out in the plaint, is that in the month of August, 1965, after making improvement in the aforesaid' quarter, the applicant let out the same to one Khan Muhammad, the late husband of respondent No,1 on a monthly rental of rs40. The deceased Khan Mohammad has been paying rent to the petitioner from August, 1965 till November 1967. In the month of November or thereabout Khan Mohammad went to Dubai where he expired.

3. After his death his widow first respondent and his daughter respondent No,2 and son respondent No,3 were living/residing in the said quarter. The petitioner demanded rent from respondent No,1 but she failed to pay the same. Hence the applicant filed an ejectment application against the respondent No,1 bearing No,1897/68. The first respondent contested the eviction application contending that there is no relationship of landlord and tenant between the parties. The eviction application was dismissed. The petitioner appealed against impugned order which was also dismissed on 7-11-1973. Thereafter the petitioner filed the above suit for declaration to the effect that he is rightful owner of quarter in suit and respondents are trespassers and also prayed for decree for mesne profits and for possession of quarter in suit. The respondent No,4 had married the respondent No,1 in the year 1974 and is residing alongwith the respondents in the said quarter.

4. ' The respondents in the written statement denied that the premises in question was let out to Khan Muhammad and/or the deceased Khan Muhammad was inducted as tenant. She pleaded that Khan Muhammad had purchased the same from quiet petitioner. The trial '.2ourt framed appropriate' issues.

5. ' The parties led evidence in support of their respective contentions. The Civil Judge, on assessment of the evidence, decided issues Nos.1 and 2 in the negative and found that the respondents are in lawful possession. The suit was valued properly and dismissed the same on the sole ground that the petitioner has failed to prove that he is lawful owner of the said plot.

6. ' The petitioner being aggrieved by the judgment and decree of the IXth Civil Judge Second Class, Karachi (South), went in appeal before the District Judge, Karachi (South). The appeal was heard by the IVth Additional District Judge, Karachi (South) and was dismissed. Hence the present revision petition.

7. ' I have heard Mr. Mubarak Hussain Siddiqui, Advocate for the petitioner in support of the above revision and Mr. S.A. Farooqui, Advocate for the respondents. I have gone through the impugned judgments of the Courts below.

8. ' Mr. Siddiqui has raised a preliminary objection not only to the approach made by the learned Additional District Judge but to the form of his joint and failure to comply with the requisitions of an appellate judgment mentioned in Order 41, Rule 31 of the Code of Civil Procedure. The next point taken by him was that the petitioner had approached the Court in a suit for declaration, possession and manse profits on the ground that the respondents are trespasser Evidence was adduced by both the sides in the trial Court and all the points were canvassed at great length but the learned Additional District Judge, had not made even a passing reference either to the evidence or to the correctness of the findings on the various issues or otherwise. What the respondent No,1 contended was that in view of the agreement of sale in favour of Khan Muhammad on which she relied, they had a right to retain possession. The learned Additional District Judge did not at all consider the documents filed by the petitioner. But there are other grounds of attack put forth by way of answer to the points on which possession is claimed and they are not decided by the learned Additional District Judge. The first appellate Court is a final Court on the questions of fact and when it has failed in its duty, the judgment would be patently erroneous on the face of it.

9. ' The arguments advanced by Mr. S.A. Farooqui for the respondents do possess the merit of plausibility and to a certain extent may sound attractive on first impressions. But the question is, when this Court is sitting in exercise of its power of superintendence and when it is shown that the judgment of the first appellate Court has failed to comply with the legal requirements, whether it should be sustained by this Court looking into the facts and arrogating to itself the role of a fact finding Court. The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. The judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The legislature has laid down these rules so that either the second appellate Court or the revisions Court should be in position to find out the track traversed by the appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussing the evidence. Strictly speaking and with due respect to the learned Additional District Judge, as one reads the judgment, it cannot be said to be a judgment of the first appellate Court at all within the meaning of Order 41, Rule 31 of the Code of Civil Procedure.

10. However, as I read the judgment of the learned Additional District Judge, nowhere he has ventured to consider the documentary evidence adduced by the parties. Therefore, the objection taken by Mr. Siddiqui, I think is sound and must prevail. Mr. Farooqui has finally conceded that the learned Additional District Judge has not taken into consideration the evidence both oral and documentary led by the parties before the trial Court. He has submitted that this is a fit case for remand. Under these circumstances I have no other alternative but to remand the matter with a direction to the learned Additional District Judge to hear the appeal on merits and decide the same according to law by diverting his attention not only on the points of controversy introduced but by scrutinizing the evidence led thereon.

11. ' In the result, the revision petition is allowed. The impugned judgment and decree of the first appellate Court are set aside. The matter is remanded to the IVth Additional District Judge, Karachi (South) for rehearing appeal on merits according to law in the light of the observations made above. The parties through their counsel are directed to appear before the learned IVth Additional District Judge, Karachi (South) on 742-1991. Therefore, I am disposed to direct the learned IVth Additional District Judge not only to expedite the appeal but to dispose it of within four months from 7-12-1991. Office is directed to remit the copy of the order and the record and proceedings forthwith. Under these circumstances, there would be no order as to costs.